to safeguard the "common interest" in terms of Article 27 (2) of the Charter. However, the
mere assertion by a State Party of the existence of a common interest warranting
interference with the right to culture is not sufficient to allow the restriction of the right or
sweep away the essence of the right in its entirety. Instead, in the circumstances of each
case, the State Party should substantiate that its interference was indeed genuinely
prompted by the need to protect such common interest. In addition, the Court has held
that any interference with the rights and freedoms guaranteed in the Charter shall be
necessary and proportional to the legitimate interest sought to be attained by such
interference.57
189.
In the instant case , the Court has already found that the Respondent has not
adequately substantiated its claim that the eviction of the Ogiek population was for
the preservation of the natural ecosystem of the Mau Forest. 58 Considering that the
Respondent has interfered with the cultural rights of the Ogieks through the evictions
and given that the Respondent invokes the same justification of preserving the natural
ecosystem for its interference, the Court reiterates its position that the interference
cannot be said to have been warranted by an objective and reasonable justification .
Although the Respondent alleges generally, that certain cultural activities of the
Ogieks are inimical to the environment, it has not specified which particular activities
and how these activities have degraded the Mau Forest. In view of this, the purported
reason of preserving the natural environment cannot constitute a legitimate
justification for the Respondent's interference with the Ogieks' exercise of their
cultural rights . Consequently, the Court deems it unnecessary to examine further
whether the interference was necessary and proportional to the legitimate aim invoked
by the Respondent.
190.
The Court therefore finds that the Respondent has violated the right to culture of the Ogiek
population contrary to Article 17 (2) and (3) of the Charter by evicting them from the Mau Forest
area, thereby, restricting them from exercising their cuttural activities and practices.
5
7
58
See lssa Konate Case paragraphs 145 to 154.
See section on the Court's Assessment on Alleged Violation of Article 8 of the Charter.
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